Chapter 102

102.07(8)(b) (b) An independent contractor is not an employee of an employer for whom the independent contractor performs work or services if the independent contractor meets all of the following conditions:

102.07(8)(b)1. 1. Maintains a separate business with his or her own office, equipment, materials and other facilities.

102.07(8)(b)2. 2. Holds or has applied for a federal employer identification number with the federal internal revenue service or has filed business or self-employment income tax returns with the federal internal revenue service based on that work or service in the previous year.

102.07(8)(b)3. 3. Operates under contracts to perform specific services or work for specific amounts of money and under which the independent contractor controls the means of performing the services or work.

102.07(8)(b)4. 4. Incurs the main expenses related to the service or work that he or she performs under contract.

102.07(8)(b)5. 5. Is responsible for the satisfactory completion of work or services that he or she contracts to perform and is liable for a failure to complete the work or service.

102.07(8)(b)6. 6. Receives compensation for work or service performed under a contract on a commission or per job or competitive bid basis and not on any other basis.

102.07(8)(b)7. 7. May realize a profit or suffer a loss under contracts to perform work or service.

102.07(8)(b)8. 8. Has continuing or recurring business liabilities or obligations.

102.07(8)(b)9. 9. The success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures.

102.07(8)(bm) (bm) A real estate broker or salesperson who is excluded under s. 452.38 is not an employee of a firm, as defined in s. 452.01 (4w), for whom the real estate broker or salesperson performs services unless the firm elects under s. 102.078 to name the real estate broker or salesperson as its employee.

102.07(8)(c) (c) The division may not admit in evidence any state or federal law, regulation, or document granting operating authority, or license when determining whether an independent contractor meets the conditions specified in par. (b) 1. or 3.

102.07(8m) (8m) An employer who is subject to this chapter is not an employee of another employer for whom the first employer performs work or service in the course of the other employer’s trade, business, profession or occupation.

102.07(9) (9) Members of the national guard and state defense force, when on state active duty under direction of appropriate authority, but only in case federal laws, rules or regulations provide no benefits substantially equivalent to those provided in this chapter.

102.07(10) (10) Further to effectuate the policy of the state that the benefits of this chapter shall extend and be granted to employees in the service of the state, or of any local governmental unit in this state, on the same basis, in the same manner, under the same conditions, and with like right of recovery as in the case of employees of persons, firms, or private corporations, any question whether any person is an employee under this chapter shall be governed by and determined under the same standards, considerations, and rules of decision in all cases under subs. (1) to (9). Any statute, ordinance, or rule that may be otherwise applicable to the classes of employees enumerated in sub. (1) shall not be controlling in deciding whether any person is an employee for the purposes of this chapter.

102.07(11) (11) The department may by rule prescribe classes of volunteer workers who may, at the election of the person for whom the service is being performed, be deemed to be employees for the purposes of this chapter. Election shall be by endorsement upon the worker’s compensation insurance policy with written notice to the department. In the case of an employer exempt from insuring liability, election shall be by written notice to the department. The department shall by rule prescribe the means and manner in which notice of election by the employer is to be provided to the volunteer workers.

102.07(11m) (11m) Subject to sub. (11), a volunteer for a nonprofit organization described in section 501 (c) of the internal revenue code, as defined in s. 71.01 (6), that is exempt or eligible for exemption from federal income taxation under section 501 (a) of the internal revenue code who receives from that nonprofit organization nominal payments of money or other things of value totaling not more than $10 per week is not considered to be an employee of that nonprofit organization for purposes of this chapter.

102.07(12) (12) A student in a technical college district while, as a part of a training program, he or she is engaged in performing services for which a school organized under ch. 38 collects a fee or is engaged in producing a product sold by such a school is an employee of that school.

102.07(12m) (12m) 

102.07(12m)(a) (a) In this subsection:

102.07(12m)(a)1. 1. “Institution of higher education” means an institution within the University of Wisconsin System, a technical college, a tribally controlled college controlled by an Indian tribe that has elected under s. 102.05 (2) to become subject to this chapter, a school approved under s. 440.52, or a private, nonprofit institution of higher education located in this state.

102.07(12m)(a)2. 2. “Private school” has the meaning given in s. 115.001 (3r).

102.07(12m)(a)3. 3. “Public school” means a school described in s. 115.01 (1).

102.07(12m)(b) (b) A student of a public school, a private school, or an institution of higher education, while he or she is engaged in performing services as part of a school work training, work experience, or work study program, and who is not on the payroll of an employer that is providing the work training or work experience or who is not otherwise receiving compensation on which a worker’s compensation carrier could assess premiums on that employer, is an employee of a school district, private school, or institution of higher education that elects under s. 102.077 to name the student as its employee.

102.07(13) (13) A juvenile performing uncompensated community service work as a result of a deferred prosecution agreement under s. 938.245, a consent decree under s. 938.32 or an order under s. 938.34 is an employee of the county in which the court ordering the community service work is located. No compensation may be paid to that employee for temporary disability during the healing period.

102.07(14) (14) An adult performing uncompensated community service work under s. 304.062, 943.017 (3), 971.38, 973.03 (3), 973.05 (3), 973.09 or 973.10 (1m) is an employee of the county in which the district attorney requiring or the court ordering the community service work is located or in which the place of assignment under s. 304.062 or 973.10 (1m) is located. No compensation may be paid to that employee for temporary disability during the healing period.

102.07(15) (15) A sole proprietor or partner or member electing under s. 102.075 is an employee.

102.07(16) (16) An inmate participating in a work release program under s. 303.065 (2) or in the transitional employment program is an employee of any employer under this chapter for whom he or she is performing service at the time of the injury.

102.07(17) (17) A prisoner of a county jail who is assigned to a work camp under s. 303.10 is not an employee of the county or counties providing the work camp while the prisoner is working under s. 303.10 (3).

102.07(17g) (17g) A state employee who is on a leave of absence granted under s. 230.35 (3) (e) to provide services to the American Red Cross in a particular disaster is not an employee of the state for the purposes of this chapter during the period in which he or she is on the leave of absence, unless one of the following occurs:

102.07(17g)(a) (a) The American Red Cross specifies in its written request under s. 230.35 (3) (e) 2. c. that a unit of government in this state is requesting the assistance of the American Red Cross in the particular disaster and the state employee during the leave of absence provides services related to assisting the unit of government.

102.07(17g)(b) (b) The American Red Cross specifies in its written request under s. 230.35 (3) (e) 2. c. that it has been requested to provide assistance outside of this state in a particular disaster and there exists between the state of Wisconsin and the state in which the services are to be provided a mutual aid agreement, entered into by the governor, which specifies that the state of Wisconsin and the other state may assist each other in the event of a disaster and which contains provisions addressing worker’s compensation coverage for the employees of the other state who provide services in Wisconsin.

102.07(17m) (17m) A participant in a trial employment match program job under s. 49.147 (3) is an employee of any employer under this chapter for whom the participant is performing service at the time of the injury.

102.07(18) (18) A participant in a community service job under s. 49.147 (4) or a transitional placement under s. 49.147 (5) is an employee of the Wisconsin works agency, as defined under s. 49.001 (9), for the purposes of this chapter, except to the extent that the person for whom the participant is performing work provides worker’s compensation coverage.

102.07(20) (20) An individual who is performing services for a person participating in the self-directed services option, as defined in s. 46.2897 (1), for a person receiving long-term care benefits under s. 46.275 or 46.277 or under any children’s long-term support waiver program on a self-directed basis, or for a person receiving the Family Care benefit, as defined in s. 46.2805 (4), or benefits under the Family Care Partnership program, as described in s. 49.496 (1) (bk) 3., on a self-directed basis and who does not otherwise have worker’s compensation coverage for those services is considered to be an employee of the entity that is providing financial management services for that person.

102.07 History History: 1975 c. 147 s. 54; 1975 c. 224; 1977 c. 29; 1979 c. 278; 1981 c. 325; 1983 a. 27, 98; 1985 a. 29, 83, 135; 1985 a. 150 s. 4; 1985 a. 176, 332; 1987 a. 63; 1989 a. 31, 64, 359; 1993 a. 16, 81, 112, 399; 1995 a. 24, 77, 96, 117, 225, 281, 289, 417; 1997 a. 35, 38, 118; 1999 a. 14, 162; 2001 a. 37; 2005 a. 96; 2007 a. 130; 2009 a. 28, 42, 288; 2011 a. 123; 2013 a. 20; 2015 a. 55, 180, 258, 334; 2017 a. 59; 2019 a. 9.

102.07 Annotation A truck owner who fell and sustained injuries in a company’s truck parking area while in the process of repairing his truck was properly found under sub. (8) to be a statutory employee of the company at the time of his injury although he was an independent contractor who worked exclusively for the trucking company under a lease agreement. Employers Mutual Liability Insurance Co. v. DILHR, 52 Wis. 2d 515, 190 N.W.2d 907 (1971).

102.07 Annotation There was no employment when a member of an organization borrowed a refrigerated truck from a packing company for use at a picnic and was injured when returning it. Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 212 N.W.2d 97 (1973).

102.07 Annotation Nothing in this chapter precludes an employer from agreeing with employees to continue salaries for injured workers in excess of worker’s compensation benefits. Excess payments are not worker’s compensation and may be conditioned on the parties’ agreement. City of Milwaukee v. DILHR, 193 Wis. 2d 626, 534 N.W.2d 903 (Ct. App. 1995).

102.07 Annotation Sub. (8) (b) supplants the common law and provides the sole test for determining whether a worker is an independent contractor for purposes of this chapter. Jarrett v. LIRC, 2000 WI App 46, 233 Wis. 2d 174, 607 N.W.2d 326, 99-1413.

102.07 Annotation A person injured upon the premises of a temporary help agency prior to receiving a work assignment was an employee under this section when the agency operated essentially as a hiring hall contracting with persons seeking work assignments and requiring that the persons seeking work physically present themselves each day at the hall and remain there until they have a work assignment. Labor Ready, Inc. v. LIRC, 2005 WI App 153, 285 Wis. 2d 506, 702 N.W.2d 27, 04-1440.

102.07 Annotation The primary test for determining an employer-employee relationship is whether the alleged employer has a right to control the details of the work. In assessing the right to control, four secondary factors are considered: 1) direct evidence of the exercise of the right of control; 2) the method of payment of compensation; 3) the furnishing of equipment or tools for the performance of the work; and 4) the right to terminate the employment relationship. Acuity Mutual Insurance Co. v. Olivas, 2007 WI 12, 298 Wis. 2d 640, 726 N.W.2d 258, 05-0685.

102.07 Annotation Sub. (8m) allows for a distinction between a person as an employee and as the proprietor of a side business that the employee runs separately. Acuity Insurance Co. v. Whittingham, 2007 WI App 210, 305 Wis. 2d 613, 740 N.W.2d 154, 06-2379.

102.07 Annotation The county was found to be the employer, for worker’s compensation purposes, of a care giver for a service recipient under the long-term support community options waiver program under s. 46.27 (11). County of Barron v. LIRC, 2010 WI App 149, 330 Wis. 2d 203, 792 N.W.2d 584, 09-1845.

102.07 Annotation Members of state boards, committees, commissions, or councils who are compensated by per diem or by actual and necessary expense are covered employees. 58 Atty. Gen. 10.

102.075 102.075 Election by sole proprietor, partner or member.

102.075(1) (1) Any sole proprietor, partner or member of a limited liability company engaged in a vocation, profession or business on a substantially full-time basis may elect to be an employee under this chapter by procuring insurance against injury sustained in the pursuit of that vocation, profession or business. This coverage may be obtained by endorsement on an existing policy of worker’s compensation insurance or by issuance of a separate policy to the sole proprietor, partner or member on the same basis as any other policy of worker’s compensation insurance.

102.075(2) (2) For the purpose of any insurance policy other than a worker’s compensation insurance policy, no sole proprietor, partner or member may be considered eligible for worker’s compensation benefits unless he or she elected to be an employee under this section.

102.075(3) (3) Any sole proprietor, partner or member who elected to be an employee under this section may withdraw that election upon 30 days’ prior written notice to the insurance carrier and the Wisconsin compensation rating bureau.

102.075 History History: 1983 a. 98; 1993 a. 112.

102.076 102.076 Election by corporate officer.

102.076(1) (1) Not more than 2 officers of a corporation having not more than 10 stockholders may elect not to be subject to this chapter. If the corporation has been issued a policy of worker’s compensation insurance, an officer of the corporation may elect not to be subject to this chapter and not to be covered under the policy at any time during the period of the policy. Except as provided in sub. (2), the election shall be made by an endorsement, on the policy of worker’s compensation insurance issued to that corporation, naming each officer who has so elected. The election is effective for the period of the policy and may not be reversed during the period of the policy. An officer who so elects is an employee for the purpose of determining whether the corporation is an employer under s. 102.04 (1) (b).

102.076(2) (2) If a corporation has not more than 10 stockholders, not more than 2 officers and no other employees and is not otherwise required under this chapter to have a policy of worker’s compensation insurance, an officer of that corporation who elects not to be subject to this chapter shall file a notice of that election with the department on a form approved by the department. The election is effective until the officer rescinds it by notifying the department in writing.

102.076 History History: 1985 a. 83; 1987 a. 115, 179; 1989 a. 64; 1991 a. 85; 1997 a. 38.

102.077 102.077 Election by school district or private school.

102.077(1) (1) A school district, private school, or institution of higher education may elect to name as its employee for purposes of this chapter a student described in s. 102.07 (12m) (b) by an endorsement on its policy of worker’s compensation insurance or, if the school district, private school, or institution of higher education is exempt from the duty to insure under s. 102.28 (2) (a), by filing a declaration with the department in the manner provided in s. 102.31 (2) (a) naming the student as an employee of the school district, private school, or institution of higher education for purposes of this chapter. A declaration under this subsection shall list the name of the student to be covered under this chapter, the name and address of the employer that is providing the work training or work experience for that student, and the title, if any, of the work training, work experience, or work study program in which the student is participating.

102.077(2) (2) A school district, private school, or institution of higher education may revoke a declaration under sub. (1) by providing written notice to the department in the manner provided in s. 102.31 (2) (a), the student, and the employer who is providing the work training or work experience for that student. A revocation under this subsection is effective 30 days after the department receives notice of that revocation.

102.077 History History: 1995 a. 117; 1997 a. 38; 1999 a. 14; 2001 a. 37; 2015 a. 55.

102.078 102.078 Election by real estate firm.

102.078(1) (1) A firm, as defined in s. 452.01 (4w), may elect to name as its employee for purposes of this chapter a real estate broker or salesperson who is excluded under s. 452.38 by an endorsement on its policy of worker’s compensation insurance or, if the firm is self-insured under s. 102.28 (2) (b), by filing a declaration with the department in the manner provided in s. 102.31 (2) (a) naming the real estate broker or salesperson as an employee of the firm for purposes of this chapter. A declaration under this subsection shall state all of the following:

102.078(1)(a) (a) The name of the real estate broker or salesperson to be covered under this chapter.

102.078(1)(b) (b) That a written agreement has been entered into that provides that the real estate broker or salesperson shall not be treated as an employee for federal and state tax purposes.

102.078(1)(c) (c) That 75 percent or more of the compensation related to sales or other output, as measured on a calendar year basis, paid to the real estate broker or salesperson under the written agreement specified in par. (b) is directly related to the brokerage services performed by the real estate broker or salesperson on behalf of the firm.

102.078(2) (2) A firm, as defined in s. 452.01 (4w), may revoke a declaration under sub. (1) by providing written notice to the department in the manner provided in s. 102.31 (2) (a) and to the real estate broker or salesperson named in the declaration. A revocation under this subsection is effective 30 days after the department receives notice of that revocation.

102.078 History History: 2015 a. 258.

102.08 102.08 Administration for state employees. The department of administration has responsibility for the timely delivery of benefits payable under this chapter to employees of the state and their dependents and other functions of the state as an employer under this chapter. The department of administration may delegate this authority to employing departments and agencies and require such reports as it deems necessary to accomplish this purpose. The department of administration or its delegated authorities shall file with the department of workforce development the reports that are required of all employers. The department of workforce development shall monitor the delivery of benefits to state employees and their dependents and shall consult with and advise the department of administration in the manner and at the times necessary to ensure prompt and proper delivery.

102.08 History History: 1981 c. 20; 1995 a. 27 s. 9130 (4); 1997 a. 3.

102.11 102.11 Earnings, method of computation.

102.11(1) (1) The average weekly earnings for temporary disability, permanent total disability, or death benefits for injury in each calendar year on or after January 1, 1982, shall be not less than $30 nor more than the wage rate that results in a maximum compensation rate of 110 percent of the state’s average weekly earnings as determined under s. 108.05 as of June 30 of the previous year. The average weekly earnings for permanent partial disability shall be not less than $30 and, for permanent partial disability for injuries occurring on or after January 1, 2023, and before March 24, 2024, not more than $645, resulting in a maximum compensation rate of $430; for permanent partial disability for injuries occurring on or after March 24, 2024, and before January 1, 2025, not more than $657, resulting in a maximum compensation rate of $438; and for permanent partial disability for injuries occurring on or after January 1, 2025, not more than $669, resulting in a maximum compensation rate of $446. Between such limits the average weekly earnings shall be determined as follows:

102.11(1)(a) (a)

102.11(1)(a)1. 1. Daily earnings shall mean the daily earnings of the employee at the time of the injury in the employment in which the employee was then engaged. In determining daily earnings under this subdivision, any hours worked beyond the normal full-time working day as established by the employer, whether compensated at the employee’s regular rate of pay or at an increased rate of pay, shall not be considered.

102.11(1)(a)2. 2.

102.11(1)(a)2.a. a. In this subdivision, “part time for the day” means Saturday half days and any other day during which an employee works less than the normal full-time working hours established by the employer.

102.11(1)(a)2.b. b. If at the time of the injury the employee is working part time for the day, the employee’s daily earnings shall be arrived at by dividing the amount received, or to be received by the employee for such part-time service for the day, by the number of hours and fractional hours of the part-time service, and multiplying the result by the number of hours of the normal full-time working day established by the employer for the employment involved.

102.11(1)(a)3. 3. The average weekly earnings shall be arrived at by multiplying the employee’s hourly earnings by the hours in the normal full-time workweek as established by the employer, or by multiplying the employee’s daily earnings by the number of days and fractional days in the normal full-time workweek as established by the employer, at the time of the injury in the business operation of the employer for the particular employment in which the employee was engaged at the time of the employee’s injury, whichever is greater.

102.11(1)(a)4. 4. It is presumed, unless rebutted by reasonably clear and complete documentation, that the normal full-time workweek established by the employer is 24 hours for a flight attendant, 56 hours for a fire fighter, and not less than 40 hours for any other employee. If the employer has established a multi-week schedule with regular hours alternating between weeks, the normal full-time workweek is the average number of hours worked per week under the multi-week schedule.

102.11(1)(ap) (ap)

102.11(1)(ap)1. 1. Except as provided in subd. 2., in the case of an employee who works less than full time, average weekly earnings shall be calculated by whichever of the following is greater:

102.11(1)(ap)1.a. a. The actual average weekly earnings of the employee for the 52 calendar weeks before his or her injury, except that calendar weeks within which no work was performed shall not be considered.

102.11(1)(ap)1.b. b. The employee’s hourly earnings on the date of injury multiplied by the average number of hours worked in that employment for the 52 calendar weeks before his or her injury, except that calendar weeks within which no work was performed shall not be considered.

102.11(1)(ap)2. 2. An employee may, subject to subd. 3., demonstrate that he or she is eligible for temporary disability benefits based on full-time work rather than part-time work as provided in subd. 1. a. by providing evidence of qualifying taxable earnings with an employer other than the employer liable for the employee’s injury or demonstrating that the employee has worked less than full time for less than 12 months before the date of the employee’s injury. If the employee so demonstrates, the employee’s average weekly wage shall be calculated using the normal full-time workweek established by the employer under par. (a).

102.11(1)(ap)3. 3. An employer may rebut the employee’s evidence of eligibility for temporary disability benefits based on full-time work under subd. 2. by providing evidence that the employee chose to work less than full time. Such evidence of a choice to restrict employment to less than full time may include a written statement signed by the employee or an employment application that indicates an hour or shift preference.

102.11(1)(b) (b) In case of seasonal employment, average weekly earnings shall be arrived at by the method prescribed in par. (a), except that the number of hours of the normal full-time working day and the number of days of the normal full-time workweek shall be the hours and the days in similar service in the same or similar nonseasonal employment. Seasonal employment shall mean employment that can be conducted only during certain times of the year, and in no event shall employment be considered seasonal if it extends during a period of more than fourteen weeks within a calendar year.

102.11(1)(c) (c) In the case of a person performing service without fixed earnings, or when normal full-time days or weeks are not maintained by the employer in the employment in which the employee worked when injured, or when, for other reason, earnings cannot be determined under the methods prescribed by par. (a) or (b), the earnings of the injured person shall, for the purpose of calculating compensation payable under this chapter, be taken to be the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a) or (b).

102.11(1)(d) (d) Except in situations where par. (b) applies, average weekly earnings shall in no case be less than actual average weekly earnings of the employee for the 52 calendar weeks before his or her injury within which the employee has been employed in the business, in the kind of employment and for the employer for whom the employee worked when injured. Calendar weeks within which no work was performed shall not be considered under this paragraph. This paragraph applies only if the employee has worked within a total of at least 6 calendar weeks during the 52 calendar weeks before his or her injury in the business, in the kind of employment and for the employer for whom the employee worked when injured. For purposes of this section, earnings for part-time services performed for a labor organization pursuant to a collective bargaining agreement between the employer and that labor organization shall be considered as part of the total earnings in the preceding 52 calendar weeks, whether payment is made by the labor organization or the employer.

102.11(1)(e) (e) Where any things of value are received in addition to monetary earnings as a part of the wage contract, they shall be deemed a part of earnings and computed at the value thereof to the employee.

102.11(1)(f) (f) The weekly temporary disability benefits for a part-time employee who restricts his or her availability in the labor market to part-time work and is not employed elsewhere, or who has worked less than full time for 12 months or longer before the employee’s injury, may not exceed the average weekly wages of the part-time employment.

102.11(1)(g) (g) If an employee is under 27 years of age, the employee’s average weekly earnings on which to compute the benefits accruing for permanent disability or death shall be determined on the basis of the earnings that the employee, if not disabled, probably would earn after attaining the age of 27 years. Unless otherwise established, the projected earnings determined under this paragraph shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable.

102.11(2) (2) The average annual earnings when referred to in this chapter shall consist of 50 times the employee’s average weekly earnings. Subject to the maximum limitation, average annual earnings shall in no case be taken at less than the actual earnings of the employee in the year immediately preceding the employee’s injury in the kind of employment in which the employee worked at the time of injury.